The Perils of Textualism

I am enjoying Garrett Epps’ new book on Reading the Constitution, and he makes an excellent observation that I am going to use to illustrate the limits of textualism.

A basic proposition of American constitutional law is that there are three branches of government. The Constitution, though, does not say this. In fact, the text uses the word “branch” to mean something else. In Article One, Section Two, eligibility of voting for the House of Representatives is restricted to those who can vote for “the most numerous Branch of the State Legislature.” Likewise, the Seventeenth Amendment refers to eligibility for voting in the Senate to “the most numerous branch of the State legislatures.” These are the only uses of “branch.”

Just reading the text, then, the answer might be that we have two branches in the federal government. The Senate and the House of Representatives. Or that we have no branches, because only state governments have them. Beware literal readings of a document.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.